Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
A.P. Sahi, President and Dr. Inder Jit Singh, Member
Mayank Selhi and Anr. – Appellants
versus
Saya Homes Private Limited – Respondent
First Appeal No.572 of 2023
(Against the order dated 22.03.2023 in Complaint No.108/2022 of the Delhi State Consumer Disputes Redressal Commission) With
IA/6875/2023, 9076/2024 and 5235/2025
Decided on 15.7.2025

Advocates:
Counsel for the Parties:
For the Appellants:Mr. Tanay Ayde, Advocate
For the Respondents:Ms. Shruti, Advocate

IMPORTANT POINTS
(1) Apartment Buyer’s Agreement – Developer cannot compel apartment buyers to be bound by one-sided contractual terms contained in Apartment Buyer’s Agreement.
(2) Offer of possession without completion certificate is not an offer of lawful possession.

Headnote:
Consumer Protection Act, 1986 – Section 19 [Consumer Protection Act, 2019 – Section 41] – Real estate – Apartment Buyer’s Agreement – Failure to deliver possession – Quantum of delay compensation – Developer cannot compel apartment buyers to be bound by one-sided contractual terms contained in Apartment Buyer’s Agreement – Delay with regard to offer of lawful possession is established – Offer of possession was without completion certificate – It was not an offer of lawful possession – Impugned order modified only to the extent that on the count of compensation for delayed possession, amount payable would be at the rate of 6% on deposited amount. (Paras 21, 22, 23, 24 and 25)
Result: Appeal partly allowed.

ORDER

A.P. Sahi, President—This appeal was entertained on 11.08.2023, when the delay was condoned and the notices were issued. The order passed on 11.08.2023, records the issues raised in the appeal and is accordingly extracted herein under:—

“Heard Mr. Tanay Ayde, learned Counsel for the Appellant. There is a stated delay of 19 days but the Registry has reported that there is a delay of 27 days.

Be that as it may, keeping in view the issues raised and even otherwise cause shown is sufficient and therefore deserves to be condoned, subject to the objection by the other side.

The contention raised is just two-fold. The State Commission has rendered the decision in favour of the Appellant, but learned Counsel for the Appellant contends that the Commission has ignored very vital aspects while extending relief, namely, the penalty for delayed possession that admittedly as per clause 14 is as follows:—

14. Failure to deliver possession : Remedy Subject to the terms and conditions of the Agreement, in case of any delay (except for Force Majeure Clause 39 and conditions as mentioned in Clause 11(ii) and 11(iii) by the Company in completion of construction of said Apartment and the Allottee(s) not being in default/breach of the terms and conditions set out in Application Form/Agreement, the Company shall pay to the Allottee(s) delayed possession charges @ Rs.53.82 per sq.mt. (Rs.5/- per sq.ft.)/Rs.161.46 per sq.mt. (Rs.15 per sq.ft.) and Rs.322.92 per sq. mt.(Rs.30 per sq.ft.) per month in respect of the Saleable area of the said Agreement for delayed period upto 4 months/more than 4 and up to 8 months and more than 8 months respectively (commencing after 36 months from the date of Agreement + 6 months’ fit out period on such extended periods) provided that all due instalments from the Allottee(s) were received in time or paid by the Allottee(s) along with interest for late payment within extended time frame allowed by the Company. The Allottee(s) agree and confirms that the compensation herein is a just and equitable estimate of the damages, which the Allottee(s) may suffer and the Allottee(s) agrees that he shall have no other right claims whatsoever. The adjustment of such compensation shall be done only at the time of execution of Sale deed of the said Apartment to the Allottee(s) first named.

Learned Counsel submits that while extending relief, the flat rate of Rs.5 per sq. ft has been pronounced, which is totally against the aforesaid admitted position in the agreement. Hence, the direction given is perverse. It deserves to be modified in accordance with Clause 14 of the agreement.

The second contention is also with regard to the date upto which the said calculation has to be made.

It is also urged, that even otherwise there are judgments indicating that when penalty on delayed possession is to be given, a certain proportion has to be maintained but looking to the nature of the relief claim, it is urged that the State Commission has completely ignored these aspects and has thus arrived at a wrong conclusion. Prima facie the contentions appear to be entertainable.

Admit. Issue notice.

List the matter on 13.02.2024.”

2. The complaint filed by the complainants was allowed after contest holding that there was deficiency in service in delivering the flat in spite of the fact that the complainants had made timely payments. Accordingly the State Commission observed as under:—

“11. Consequently, we hold that the Opposite Party No.1 is deficient in providing its services to the Complainants as the Opposite Party No.1 had given false assurance to the Complainants with respect to the time for completing the construction of the said apartment and arbitrary cancelling the allotment of the Complainants.

12. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party No.1 to deliver the physical & vacant possession of said Apartment No.SG-2/3504 on 35th floor in Tower No.SG-2,